The Muslim Ban Waiver Process Appears to Be a Charade

Rep. Pramila Jayapal speaks outside outside the Supreme Court for the No Muslim Ban Ever protest on April 25, 2018 in Washington, D.C.

Tasos Katopodis/Getty Images

On Tuesday, the Washington Post reported on the waiver process for those affected by President Donald Trump’s Muslim ban. As the paper noted, the ban appears to be affecting countless people who would seem to qualify for a waiver, but are experiencing no such relief.

It’s difficult to estimate the actual numbers of those impacted by the dearth of waiver issuances, because as the paper lays out—and as was described during Supreme Court oral arguments last month—the process is incredibly opaque.

At issue is a case-by-case waiver system in Trump’s travel ban which states waivers will be given in cases when: “issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship.”

Receiving a waiver does not automatically mean you get a visa. As the Post notes, the number of waiver recipients was reported to be 400 at the time of last month’s oral arguments, but is now reported to be 655 and the State Department won’t say how many of those recipients have actually gotten visas to travel to the United States.

As Neal Katyal, arguing for the plaintiffs, noted during the travel ban oral arguments last month, the government will not specify the denominator on that 655 number—the number of total people who have applied and been rejected—or how specific determinations are made. “The data that we do have suggests as a matter of percentages it is very weak,” Katyal argued. “Just to give you some evidence of that, just the State of Hawaii has gotten about a thousand letters from people, most of which say we’re not even getting waivers.”

At the time, Justices Stephen Breyer and Sonia Sotomayor wondered if the policy might be “window dressing,” with Breyer asking if the policy actually matters if consular officials “never apply it.”

The Post story dives a bit more deeply into the type of people who are being denied waivers, or have yet to receive visas. From the paper:

The stories of rejection — of people separated from spouses and children, of the elderly and the sick — were far more plentiful, and bear no distinguishable differences from those who received waivers, attorneys said.

They included a U.S. citizen’s 11-year-old Yemeni daughter who suffers from cerebral palsy and whose access to lifesaving medication has been hindered by the war in Yemen; an Iranian man whose mother was dying of metastatic breast cancer in Texas; and an 80-year-old Iranian man, whose American daughter wanted to bring him to the United States to live with her after his wife and son died.

The paper also tells the heartbreaking story of Mohammed Al-Awadhi. According to the paper, Al-Awadhi’s Yemeni wife “has a serious heart condition, she’s married to a law-abiding U.S. citizen and the rejection of her visa would tear apart their marriage and leave her in a nation ravaged by war and famine.” Al-Awadhi is an internal medicine physician who works at Tacoma General Hospital in Washington state and became an American citizen in 2013. His wife with the heart condition was rejected by consular officials in Djibouti, Al-Awadhi told the Post. Al-Awadhi’s says he contacted his Congressman, Rep. French Hill (R-Ark.), who told him the waiver had been approved. But Al-Awadhi says he can’t get any more information from consular, State Department, and U.S. Citizenship and Immigration Services officials about when his wife will actually be allowed to come to the country.

Nageeb Alomari, the father of the 11-year-old Yemeni girl with cerebral palsy—excluded by Trump’s ban whose purported purpose is to defend against national security threats—has been experiencing similar woes. His daughter’s story actually took center stage in last month’s oral arguments, with Justices Ginsburg and Breyer bringing it up to Solicitor General Noel Francisco. “I am not familiar enough with the details of that case to tell you what happened in that particular case,” Francisco said to the court at the time.

What apparently happened is that the girl was mistakenly rejected. Shortly after arguments, the PARS Equality Center filed an amicus brief on behalf of the Alomari family. The brief included the Alomari’s rejection letter dated Jan. 29, 2018 with a checked box saying: “Taking into account the provisions of the Proclamation, a waiver will not be granted in your case.” The day before oral arguments, according to the brief, Alomari received an email from the consular officer who had rejected his daughter’s application, claiming it had merely required “review from my supervisor” and was ultimately approved. Alomari’s lawyers say he was never sent information to that effect until the day before oral arguments, when he received an email claiming that the waiver had been approved. As the brief noted, however, the official form attached to the email did not expressly state that the waiver has been approved.

In any event, Alomari’s daughter had not been granted a visa and remained in Djibouti, he says without the medical care that she needs. According to the Post, the family still has not received the visas.